Keynote Address: History of Violence Against Children in State Systems

Keynote address for World Congress on Justice with Children satellite event

On June 2-4, the Global Initiative JWC convened the 5^th World Congress on Justice with Children in Madrid, Spain. This event offers an opportunity for discussion and action to address critical challenges facing the world’s children. It brings together policymakers, advocates, academics, children, and young people. This year’s theme was Advancing Child-Centred Justice: Preventing And Responding To Violence Affecting Children In Child Justice Systems. Following the event, one of the event hosts, Baker McKenzie, hosted satellite events around the world. On June 10, in collaboration with the American Bar Association Commission on Homelessness & Poverty and the Children’s Rights Litigation Committee of the Section of Litigation, Baker McKenzie hosted Addressing Violence Against Children Within State Systems: Time For New Solutions.

I was so honored to be asked to give a keynote at this event before an excellent panel of speakers – Britanny Mobley of Public Defender Services, Marisol Garcia of Health Law Advocates, Ira Lustbader of Children’s Rights, Lisa Pilnik of Child and Family Policy Associates discussed possible solutions to address state-imposed violence and Sonia Cohen from ChildFocus as an exceptional moderator moved us forward.

In my keynote, I drew from the research and writings of my excellent Juvenile Law Center colleagues as well as the wisdom (and writing) of a great mentor and friend, James Bell, who introduced me to Dr. Paul Farmer’s theory of the intentionally inequitable distribution of rights. This is confirmed by the racial impact of our violent systems of state harm - the family policing system and the juvenile legal system. Below is my keynote address.

Introduction

I was asked to speak this afternoon to provide context into how the state systems children are forced into are violent. I would posit that they are not just violent in the outcomes they produce, but in their very founding. Children in contact with the legal system – through alleged dependency or delinquency – rarely receive the benefit of childhood. People talk about these systems as broken because they were intended to protect, rehabilitate, and uphold children’s rights. Yet, what we know is the systems instead were built to protect a very specific social order.

Dr. Paul Farmer, a globally known physician and medical anthropologist, once explained that “protection of rights are not accidents, they are not random in distribution or effect. Rather they reflect symptoms of deeper pathology of power. They are intimately linked to social conditions that so often determine who will suffer abuse and who will be protected from harm.”

We have been encouraged to believe that our child-serving state systems do that; that they were designed to protect children. Given the racial makeup of the family policing system, what is commonly known as the child welfare system, and the juvenile legal system, sometimes referred to a justice system, it is clear who these systems were designed to protect and who they were designed to control and harm.

The story we all know is that in 1899, the first juvenile court was created in Illinois. It was a paternalistic court, with an informal setting. The focus was rehabilitative, not punitive. Children who were seen as orphans or neglected, were placed with foster families and wayward children were sent to pastoral or family-like settings.

In actuality, this movement was largely led by upper middle class white women who rejected socialism and wanted to maintain order and social control. They desired to preserve the existing class system and the distribution of wealth. So, they sought to address what they deemed a dangerous class of children – children of Irish and German immigrants, “street children” and children who were working in the child labor market.

And the “systems” we see today to manage children that society believes have acted outside our societal norms, date back even before the first juvenile court act was written.

Since 1619, enslaved Black children and families have been policed, surveilled, controlled, and harmed. Black children were torn from their families and sold to white slaveowners with no regard for keeping families together. In later years, Indigenous children, likewise, were “rescued” from their communities and placed with white families or in boarding schools to unlearn their customs, languages, and traditions. And more recently, Latine children have suffered intense family separation at the border.

Today, these systems are likewise weaponized against LGBTQ+ children and children with disabilities. Laws and policies criminalize access to essential medical care, deny parental decision-making, and force children out of state systems into poverty and homelessness. Rather than investing in families and communities, our response is carceral.

When our state systems impose value on a group of children and so clearly devalue others, the resulting harm is significant.

So, while the latter part of this afternoon will be spent discussing solutions to address violence in the systems, to better understand the harm these systems cause today, we need to examine the violence at their roots.

History of the family policing system

The system commonly known as the child welfare system or the foster care system does not provide for welfare or for care. The system instead has a long history of separating children and families of color, particularly Black and Indigenous families, because of unjust and racist policies and practices. This system utilizes surveillance, regulation, and punishment to control families and ensure adherence to white standards of parenting. This notion of controlling parenthood dates back to chattel slavery, when white enslavers would use the threat of taking children away or selling children to get enslaved parents to modify their behavior and conform to their standards. To navigate the precarious nature of their family, enslaved people had to behave in ways the enslavers deemed “good.”

Since the 19^th century, the blatant separation of children from their non-white families set the foundation for the current American child welfare system. In the early 1800s, “colored orphan asylums” existed as an alternative to orphanages. These segregated institutions were overcrowded and provided far inferior family-like settings to Black and Brown children than that provided to their white peers. The founders of the modern child welfare system, deemed “child-savers” were motivated by racism and Christian values, and felt it was in children’s best interests to remove them from parents who lived in poverty and send them to live with middle-class Christian families. Children, most who came from poor, Black, and immigrant families, were removed from their homes and sent on “Orphan Trains” to western parts of the country to work on farmland. Up to 300,000 children were separated from their families over the course of this 30-year experiment.

During this same time, Indigenous children were forcibly removed from their homes and sent to live at boarding schools where they were forbidden from speaking their language, practicing their religious customs, or wearing their traditional clothing. To ensure that children were not connected to their heritage, parents were not allowed to visit their children at the boarding schools.

When the orphan trains and forced boarding school removals ultimately concluded due to rising protests, the federal government stepped in to enact regulations to form the current system we know today. Yet, much of the changes codified the racist underpinnings of the historical roots of the system. The Indian Child Welfare was passed to at least ostensibly ensure tribal courts had authority to make decisions regarding the welfare, care, custody, and control of Indian children. Still, native children continue to be removed from their parents’ care at disproportionate rates and white caretakers are still positioned as superior. Legislation, including the Child Abuse Prevention and Treatment Act (CAPTA) and the Adoption and Safe Families Act (ASFA) expanded the way families are policed, surveilled, and torn apart by the family policing system. And more recent policies enacted in the last 15 years have resulted in a disproportionate number of families being separated at United States/Mexico border. Children of adults detained by ICE, have been placed in detention centers themselves and then turned over to shelters, often hundreds of miles away with no reunification plan.

Today, Black, Indigenous, and Latine families who are disproportionately targeted by the family policing system, must allow their behavior to be regulated to demonstrate conformity with surveillance systems. Policies permitting an expansive network of information sharing between schools, health care facilities, public assistance offices, and law enforcement, threaten parents’ ability to care for their children.

We employ a punitive, removal-focused strategy, rather than responding to the economic inequities that result in system involvement through financial resources. Between 1974, when mandatory reporting became a requirement in each state, and 1990, cases of “maltreatment” or “neglect” rose dramatically—from 60,000 to more than 2,000,000. These policies destabilized Black families, linking good parenting to access to money and characterizing low-income Black people as unfit parents. Currently, “neglect” is the most often cited reason used to remove children from their families. This ground for removal is merely a proxy for poverty-related circumstances.

Today, over 200,000 children are removed from their families and enter the foster system. Over 50% of Black children in the United States will experience a child welfare investigation before their eighteenth birthday (nearly double the rate of white children) and nearly 10% of all Black children will be removed from their parents and placed into the foster system (double the rate of white children). Similarly, there has been tremendous growth in the placement of Indigenous and Latine youth in the foster system. By contrast, white children are underrepresented in the child welfare system as compared to their population.

Once in the foster system, Black children are more likely to have their relationships with their parents legally severed. One in 41 Black children will have their parents’ rights terminated (more than double the rate of the rate of the general population).

Social and psychological evidence overwhelmingly demonstrates that children who have connections to their families—specifically their parents and siblings—have better outcomes in nearly all categories; they possess higher self-confidence, the ability to regulate emotions, fewer instances of chronic illnesses, and the ability to maintain age-appropriate employment. The opposite is true for children who are prevented from maintaining familial bonds. Children suffer from intense anxiety, deep depression, and feelings of loss and grief because of family separation. It can disrupt a child’s brain architecture and affect short- and long-term health. Children who experience ongoing family separation are at risk for a host of other psychological complications including toxic stress, the destruction of essential attachments, grief, loss, “anxiety, emotional distress, behavioral problems, depression, and lifelong health consequences.”

This sense of grief is sometimes referred to as ambiguous loss, which is a loss that involves a lack of clarity about a loved one’s physical and/or psychological presence. It can be “the most distressful of . . . losses because it is unclear, there is no closure, and without meaning, there is no hope.” Grief can further manifest in “guilt, post-traumatic stress disorder, isolation, substance abuse, anxiety, low self-esteem, and despair.”

History of the juvenile legal system

Much like the “child welfare system” the juvenile “justice” system was theoretically designed to care for children – to spare children from the harsh criminality of the adult legal system. Yet, the racist roots demonstrate its true purpose. Punishment was historically imposed differentially through racialized caste systems.

The criminal system, and by extension, the juvenile legal system, is a vehicle to control the lives of Black and Brown people. After slavery was outlawed, the Freedman’s Code passed by the federal government permitted former slaveholders to force free Black children into apprenticeships and act as their guardians until they reached adulthood. Newly created Black Codes incarcerated Black people for conduct that was not criminal for white people, and capitalized on an exception within the Thirteenth Amendment that legalized slave labor by imprisoned people.

At the same time, white youth were given opportunities to reform. In 1825, the first House of Refuge opened in New York to address “unsupervised and poor” children. Early houses of refuge excluded Black and Brown children, but later segregated sections, or segregated facilities opened where Black children were treated even more harshly. Once the juvenile court act was established, Black youth were not given the benefit of community-based services and rehabilitation that the system purported to provide. Instead, they were more likely to be confined in adult prisons.

This became even more pronounced in the era of mass incarceration and the superpredator. Headlines of the 1980s and 1990s depicted Black and Brown youth from urban neighborhoods as a unique breed of criminal – violent, morally deficient, and most importantly, non-white. The term superpredator gained widespread popularity and the resulting legislative impact forever affected the way Black and Brown children are adultified by the legal system. The 1994 Crime Bill encouraged states to impose harsher penalties, mandatory sentencing laws, and increase opportunities for children to be tried as adults. Teenagers were sentenced to death or life imprisonment. While the myth of the superpredator was debunked, any semblance of empathy toward children by the legal system was suspended.

Within the juvenile legal system, children face immense harm when removed from their homes and placed within juvenile facilities. Called euphemistic things like “training schools” these youth prisons operate like any other correctional facility. Out-of-home detention and placements remove children from the familiar environments that support their learning, and instead replace them with inadequate alternatives. Facilities typically provide inferior educational opportunities, causing incarcerated children to fall behind or drop out altogether when they return to their home communities. These placements separate youth from their families and communities; impose trauma; expose youth to abusive practices, including strip searches, physical and chemical restraints, and solitary confinement. They put young people at risk of physical and emotional abuse; and are ineffective in reducing recidivism.

A national study showed that of 7,000 youth in juvenile facilities, almost a third reported “being beaten up or threatened with being beaten up since coming to their facility.” Nearly one quarter (24%) of victims said their assailants were facility staff. And almost 10% experienced sexual victimization in juvenile facilities by both staff and other youth. Though institutional placement and detention can harm all youth, these harms fall disproportionately on youth of color, LGBTQ+ youth, and youth with disabilities.

Young people involved in the juvenile legal system have higher rates of past exposure to violence than other young people, and system placements can make trauma symptoms worse. The hallmarks of correctional approaches to confinement, including belligerent staff, aggression between youth and staff, lack of privacy, and seclusion and restraint, can trigger trauma-related responses or exacerbate already present traumatic stress symptoms.

Because of their unique developmental stage, teenagers are particularly susceptible to the harms of placement and detention. Adolescence is a time of tremendous growth and personality development during which youth’s brains undergo important changes to prepare for adulthood. Even periods of youth incarceration of less than one month are “associated with depressive symptoms as an adult.” These mental conditions are only exacerbated in overcrowded facilities which also contributes to the increased suicide rate of detained youth. Studies have also found that the suicide rate of incarcerated youth is two to four times the suicide rate of youth in the community.

Even when not incarcerated, children deprived of their liberty by the juvenile legal system face immeasurable harm, familial disruption, economic insecurity due to monetary cost of court involvement, and the lasting effects of their juvenile court records on their ability to gain employment as they move into adulthood.

Conclusion

Given the immense harm imposed by these systems on Black, Brown, and Indigenous youth, LGBTQ+ youth, and youth with disabilities, it is easy to see Paul Farmer’s philosophy playing out. The pathology of power has dictated who will suffer abuse and who will be protected. So as we think about how to address this binary we must come up with solutions that work to unravel the historical violence at its core. Yes, in the meantime, children face these systems every day – and we must do all we can to reduce the harm they experience. We can legislate to provide rehabilitative services, we can build state-of-the-art juvenile correctional facilities with access to green space and schools, we can to offer training to social workers and correctional officers. But, our charge is to identify solutions that will challenge the pathology underpinning the violence of these systems. Otherwise, we continue to perpetuate the social conditions that determine who will suffer harm and who will be protected from abuse.